United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the petition of D'Andre
Whitley for writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254. The parties have consented to the jurisdiction
of the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636(c).
D'Andre Whitley is presently incarcerated at the South
Central Correctional Center pursuant to the judgment and
sentence of the Circuit Court of Saint Louis City. On
February 29, 2012, a jury convicted petitioner of one count
of first-degree assault (Count I), in violation of §
565.050; one count of first-degree burglary (Count
III), in violation of § 569.160; and two counts of armed
criminal action (Counts II and IV). The jury found petitioner
not guilty of an additional charge of first-degree assault
and the associated armed criminal action charge (Counts VII
and VIII). Verdicts [Doc. # 9-4 at
73-78]. On April 13, 2012, the trial court
sentenced petitioner as a persistent offender to consecutive
terms imprisonment for 15 years on Count I and 5 years on
Count II, and concurrent terms of 15 years on Count III and 5
years on Count IV, for a total sentence of 20
years. Judgment [Doc. # 9-4 at 87-91]. The
Missouri Court of Appeals affirmed petitioner's
convictions and sentences on direct appeal on September 17,
2013. State v. Whitley, No. ED98812 (September 17,
2013) (“State v. Whitley”) [Doc. # 9-5].
Petitioner's motion for post-conviction relief pursuant
to Missouri Supreme Court Rule 29.15 was denied following an
evidentiary hearing. Findings of Fact & Conc. of Law
(FFCL) [Doc. # 9-6 at 21-31]. On November 17, 2015, the
Missouri Court of Appeals affirmed the denial of
post-conviction relief. Whitley v. State, No.
ED102458 (Nov. 17, 2015) (“Whitley v.
State”) [Doc. # 9-9]. Petitioner timely filed this
petition for relief pursuant to 28 U.S.C. § 2254 on
September 28, 2016.
jury heard testimony that, on the evening of October 22,
2010, petitioner was at a nightclub with several friends,
including Kelvin Nelson, Robert Turner, and Russell Vincent.
The friends reconvened at Russell Vincent's home in St.
Louis City where they were shooting dice for money and
taunting each other. Nelson and Turner testified that the
group often taunted or argued with one another and that it
was not a cause for concern. See Trial Transcript
[Doc. # 21-1 at 22 & 110]. At some point, petitioner got
angry and started to leave the house. Nelson caught up with
petitioner on the porch and asked him where he was going. The
two men started “tussling” with one another and
they fell off the front porch. Nelson, who was much larger
than petitioner, sat on petitioner and tried to get him to
calm down. Id. at 25-26. When petitioner finally got
to his feet, he told Nelson, “You're a dead nigger
tonight, ” before getting in his car and driving off.
Nelson testified that he thought petitioner would go home and
cool off and that would be the end of the incident.
Id. at 26-27.
Turner saw the altercation between Nelson and petitioner.
Id. at 110-12. He helped petitioner get to his feet
and told him to calm down. He heard petitioner threaten
Nelson before he left, but did not think much of it. Turner
was on the front porch about ten minutes later when
petitioner's car came speeding around the corner and
stopped in front of the house. Id. at 113-16.
Petitioner got out of the car and fired a shot at Turner, who
ran into the house and locked the front door behind him.
Turner yelled out that petitioner was back and that he was
shooting. Id. at 116-17. Turner testified that the
front door swung “clean open” and petitioner
entered, firing his weapon. Id. at 118-20.
was in the hallway when petitioner entered the house. He saw
petitioner holding a pistol with an extended clip.
Id. at 29-30. Petitioner raised the pistol and began
firing at Nelson, who ran for the kitchen. Petitioner
followed Nelson into the kitchen and fired several shots,
hitting Nelson in the arm and stomach. Id. at 32-33.
Petitioner then ran off through the front door. Nelson
suffered a broken arm and collapsed lung. Id. at 34.
officer Harvey Graef testified that he recovered a total of
eighteen shell casings on the front porch and in the house.
Id. at 167. There was a bullet hole in the door
jamb, but Officer Graef could not say whether it was caused
in this crime. Id. at 159, 170-71.
testified at trial that he was not with the group that
evening. Trial Transcript [Doc. # 9-1 at 181, 192]. In
response to questions about why his friends would identify
him as the shooter, he testified that he was more successful
in the drug trade than they were. Id. at 182.
Plaintiff believed that, when Nelson was shot by an unknown
person, the group saw an opportunity to eliminate him as a
competitor. Id. at 194.
claim has been adjudicated on the merits in state court
proceedings, habeas relief is permissible under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d), only if the state
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
court's decision is “contrary to” clearly
established law if “it applies a rule that contradicts
the governing law set forth in [the Supreme Court's]
cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme Court] but
reaches a different result.” Brown v. Payton,
544 U.S. 133, 141 (2005). “The state court need not
cite or even be aware of the governing Supreme Court cases,
‘so long as neither the reasoning nor the result of the
state-court decision contradicts them.'” Brown
v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004)
(citing Early v. Packer, 537 U.S. 3, 8 (2002)).
“In the ‘contrary to' analysis of the state
court's decision, [the federal court's] focus is on
the result and any reasoning that the court may have given;
the absence of reasoning is not a barrier to a denial of
decision involves an “unreasonable application”
of clearly established law if “the state court applies
[the Supreme Court's] precedents to the facts in an
objectively unreasonable manner, ” Payton, 544
U.S. at 141; Williams v. Taylor, 529 U.S. 362, 405
(2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Id. at 406. “Federal habeas
relief is warranted only when the refusal was